Texas is one of nine states that are considered community property states. What that means, is that everything earned or acquired during the marriage will be presumed to be community property. Anything earned prior to marriage, gifts and inheritances will be considered a spouse’s separate property and will not be divided. Upon a divorce, the court will divide all of the community property as it sees “just and right.” What that division looks like depends on all the facts and circumstances of the case, but generally, the court will begin somewhere 50-50 division depending on the jurisdiction.
Because Texas is a community property state, there is a presumption against post-divorce spousal maintenance. This means that the person asking for maintenance has the burden of proof.
It is important to note that post-divorce spousal maintenance is different from temporary spousal support, which is support during the pendency of the divorce.
To overcome the presumption against spousal maintenance, a spouse must be able to prove that they are unable to meet their minimum reasonable needs, and that either:
- The spouse for whom maintenance is requested has either been convicted of or received deferred adjudication for a criminal offense involving family violence within 2 years before the divorce was filed, or
- The spouse is unable to meet their minimum reasonable needs because of an incapacitating physical or mental disability; or
- The parties have been married at least 10 years and the spouse lacks the ability to earn sufficient income to meet their minimum reasonable needs; or
- There is a child of the marriage that requires substantial care for a physical or mental condition that prevents the custodian of that child from working to meet their minimum reasonable needs.
The most common ground a spouse will be able to request maintenance is by using the 10 year and inability to meet their minimum reasonable needs prong. However, one should be careful as there is also a requirement that the spouse seeking maintenance exercise diligence in either trying to meet their minimum reasonable needs or obtaining the skills required to meet their minimum reasonable needs. Oftentimes, Courts will not consider a spousal maintenance argument if the requesting spouse cannot provide the Court with documentation of the jobs that they have applied for and/or emails that they have sent to show that they have not just sat on their hands while requesting that their spouse pay them support.
Your attorney will work with you on a financial information statement as an aid to the court to show what your minimum reasonable needs are, as well as your monthly expenses. Your needs and expenses may vary based on your geographic location, needs of the children, ability to work part-time, etc.
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